Whatever Happened to the Articles of Confederation? Part V

Rodney DodsworthJanuary 23, 2017August 31, 2018Comments Off on Whatever Happened to the Articles of Confederation? Part V

Subtitle: The New Jersey Plan.

In this post, we’ll see why continuance under the Articles of Confederation (AC) was certain to destroy the Union.

The commissions for delegates to the convention were, at most, slight variations of the wording of the report from the 1786 Annapolis convention, “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” It is on this clause that Article V opponents hang their collective hats. To them, entire state delegations intentionally disregarded their instructions to strictly stand by improvements to the AC. In a speech on May 29th, Virginia Governor Randolph spoke of the defects of the AC, the prospect of anarchy, and remedy in the establishment of an effective republican government which could defend itself against encroachment and be superior to the state constitutions. The Virginia Plan served as the starting point for debate, and would, in highly-modified form, emerge in September as our beloved Constitution.

Its first resolution called for correction and enlargement of the AC to accomplish its purposes, namely, “common defense, security of liberty and general welfare” of the United States. To achieve these goals, the Virginia Plan would establish legislative, executive, and judicial branches that replaced the confederation congress with a republican form. In this sense, the Virginia plan did not amend the AC, but was instead, a bold departure from it.

In the sixth resolution, the new national legislature was to have all the powers vested in congress by the AC. In this sense, the Virginia Plan was simply an improvement of the AC.

But, by any measure, and on closer inspection, the Virginia Plan was hostile to the states. State representation in a new bicameral congress (Resolution No. 5) was but a faint echo of the tight leash states had on their delegates to the AC congress. The defining feature of confederation, equality of suffrage among the states, was gone, because representation in both houses was to be proportional, proportioned on either the basis of population or wealth. Through Resolution No. 6, congress could repeal state laws, and “call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” Since the states were viewed as largely responsible for the turbulence of the times, heavy encroachment on state authority was a logical reaction, which made the thirteenth resolution even more remarkable:

Resolved that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.

Resolution thirteen evolved and emerged as Article V, which retained the right power of the sovereign people, via their states, to amend the Constitution. In Resolution thirteen, a scrap of federalism lived on in a plan largely designed to exterminate it.

At this early stage in the convention, we must understand that the states were held in such low regard, the governor of Virginia submitted a plan that stomped on states’ legislative powers, and established the national government’s authority to coerce obedience of the states.1 Over the course of summer-long debate, the nationalist and unbalanced Virginia Plan, which hindsight tells us didn’t stand a chance at ratification, would take on additional federal characteristics that not only enhanced its ratification prospects, but created a new and balanced republican form that rested on a foundation of equal representation of both the people and the states. Since government would act on the people, the people deserved their own institution in congress. Per the 15th Resolution, special conventions of the people’s delegates should ratify the Constitution.2

Small-state delegates from Connecticut, New York, New Jersey, Delaware, and Maryland led the fight to keep the AC, to preserve a union of states possessed of equal political rights. These men, spooked by the Virginia Plan, were willing to grant coercive authority to the AC, which would have been unthinkable just a year before. And not far from their consciousness was the old-time fear that the larger states would end up devouring the small.3 They weren’t against national features in an improved government, but were determined not to surrender significant power to the large states in proportion to population or wealth.

Equality of state suffrage in the senate was a battle the small states could not afford to lose. Delaware’s commissions to her delegates read in part, “In determining Questions in the United States in Congress Assembled each State shall have one Vote.” On June 9th, New Jersey delegate William Patterson reminded the convention that the small states could not be forced to accept disagreeable terms, and would never join the plan as constituted. In a game of political chicken, he said he’d rather submit to a monarch or a despot than give up equal representation in the second branch.4 As of June 11, by a 6-5 vote, seats in the senate were still proportionally allocated. On this matter, the convention was at an impasse as each side waited for the other to blink.

On June 13th, when practically the whole of the nationalist Virginia Plan had been adopted, Patterson asked for further time to present an alternative, which he did, on June 15th. The New Jersey Plan retained the confederation congress. Congress was to appoint one or multiple chief executives, who in turn were responsible for appointing judges to a judicial branch. Acts of Congress and Treaties were superior to state laws in The New Jersey Plan of government. If the governing structure of the two plans were diagrammed and held up side-by-side, the only significant difference was the lack of a House of Representatives in the New Jersey Plan.

The New Jersey Plan granted two powers the states defeated only a few years’ before, a limited right of congress to regulate trade, and an impost. Just as important, the New Jersey Plan elevated congressional resolutions of the AC to that of law, and since laws aren’t laws without means of enforcement, the New Jersey Plan also authorized use of force to collect taxes and enforce congressional law.5

What the two plans shared were three branches; both were the supreme law of the land, and both (for the time being) relied on military enforcement of the law. Yet, the use of military force as a first resort would never do. It would so much as ensconce a guarantee of civil war in the frame of government! Recall the original AC reliance on voluntary compliance with congressional resolutions had proved to be impractical. On this point, the new and improved AC of the New Jersey Plan still acted only on the states. Try to imagine, as our Framers did, of invading federal armies to collect taxes!

This feature of the New Jersey Plan, military enforcement of the law, made the confederated form unsuited and impossible for the United States.

To avoid this, the supreme law must be ratified by, and act on the people. Therefore, the people required an institution of their own. Add a House of Representatives to the New Jersey Plan, and the convention would have likely reasoned itself to the same conclusion, our Constitution of government.

Whereas the objectionable features of the Virginia Plan were eventually removed, there was no way around military coercion under the New Jersey Plan. Yes, the Constitution provides for military force in the ultimate necessity, but it is not the first resort.

The second para of Article VI to the Constitution may be called the central clause of our governing system.6

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United states, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Article VI enshrined the rule of law, not of men. Pull it from the Constitution, and the whole thing falls apart. For the first time in history, government itself was dependent on fundamental law.7 Unlike the AC, the Constitution isn’t dependent on the passing will of occasional legislators; it is law enforceable like any other law in courts. Rather than send armies to impose laws, or order the states to erase acts from their statute-books, state judges themselves were called upon to disregard all state acts contrary to the law of the land. Likewise, the new government was bound to the supreme law that created it.8

Conclusion. Debate surrounding the amended version of the AC, the New Jersey Plan, showed why continuing with a confederation of states would ultimately destroy the Union. Whereas the Virginia and New Jersey Plans, as submitted, were hostile to the people and states, our Framers used Natural Law, the law of reason to arrive at the best, most solicitous governing form ever devised. Today, we need not, as Governor Randolph lamented, “yield to despair.”9 It is our duty to restore their vision of free government.

We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.

Madison, J. (1966). Notes of Debates in the Federal Convention of 1787. Chicago: Ohio University Press. p. 348. George Mason and others on July 23 elaborated why an AC ratified by state legislatures was inferior to Constitutions ratified by the sovereign people. Read more of this day for the debate over just who, the people or state legislatures, should decide ratification.